Women’s Property Rights in India – An Overview
-- Lovekesh Jain, Avocate --

Recently, the Supreme Court (SC) has ruled that daughters will have equal rights to their father’s property even before the enactment of the Hindu Succession Act (HSA) of 1956.

The case involved a dispute over the property of an individual who died in 1949 relinquishing a daughter who also died in 1967.

Earlier, the tribunal held that since the person had died before the enforcement of HSA, 1956 therefore the petitioner and her other sisters weren't the heirs as on the date of his death and wasn't entitled to partition of share within the suit properties. Later, the court, too, dismissed the appeal against the judicature.

Daughters Inheritance: It ruled that the property of a person who had died without executing a will and is survived only by a daughter will devolve upon the daughter and not others like his brother.

Earlier in 2020, the SC has already expanded the Hindu women’s right to be the coparcener (joint legal heir) and inherit ancestral property on terms adequate male heirs.

Ancient Texts & Judicial Pronouncements: The SC mentioned ancient texts (smritis), commentaries by various renowned learned persons and even judicial pronouncements which have recognised the rights of several female heirs, the wives and therefore the daughter’s being the foremost of them.

Tracing the sources of customary Hindu law on inheritance, the SC discussed Mitakshara law.

SC also looked into Vyavastha Chandrika, a digest of Hindu Law by Shyama Charan Sarkar Vidya Bhushan which quoted ‘Vrihaspati’ as saying ‘the wife is pronounced successor to the wealth of her husband, in her default, the daughter. As a son, so does the daughter of a person proceed from his several limbs.

The SC also noted that the book quoted Manu as saying “the son of a person is at the same time as himself, and also the daughter is adequate the son. How then can the other inherit his property, notwithstanding the survival of her, who is, as it were, himself ”.

Old Law: Right of a widow or daughter to inherit the self-acquired property or share received in partition of a coparcenary property of a Hindu male dying intestate is well recognised not only under the old customary Hindu Law.

If a property of a male Hindu dying intestate could be a self-acquired property or obtained in partition of a coparcenary or a family property, the identical would devolve by inheritance and not by survivorship, and a daughter of such a male Hindu would be entitled to inherit such property in preference to other collaterals”.

Property After Woman's Death: The court also said that if a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would head to the heirs of her father whereas the property inherited from her husband or father-in-law would attend the heirs of the husband.

In case a female Hindu dies let alone her husband or any issue, then Section 15(1)(a) of the HSA 1956 will get operation and also the properties left behind including the properties which she inherited from her parents would devolve simultaneously upon her husband and her issues.

Related Data: Property in India is basically inclined to be passed on to male heirs. This successively deprives women of agency, financial independence and entrepreneurship. 

According to the National Family Health Survey-5 , 43% of ladies respondents reported owning house/land alone or jointly, but doubts remain about women’s ability to truly access and control property.

In fact, a 2020 University of Manchester working paper found barely 16% of ladies in rural landowning households own land.

Patriarchy: In deep patriarchal mores and rural-agrarian settings, property, which is seen as a primary source of wealth, is essentially inclined to be passed on to male heirs.

State Laws: Inheritance laws for agricultural land remain a minefield with conflicting central personal laws and state laws.

In this regard, states like Punjab, Haryana,Uttar Pradesh (UP) and even Delhi have regressive inheritance provisions.

In fact, Haryana twice tried to require away the progressive rights given to women through HSA1956, while in UP since 2016 married daughters aren’t considered primary heirs.

Ground-level Resistance: there's also plenty of ground-level resistance to registering land for ladies in several north Indian states. Thus, women’s empowerment and property rights remain an unfinished project.

Madhu Kishwar & Ors. v. State of Bihar & Ors. (1996)

In this case, the constitutionality of certain provisions of the Chota Nagpur Act, 1908 was challenged. it had been contended that the provisions favoured males belonging to the Scheduled tribes within the succession to property. The court held some of the impugned provisions unconstitutional; however, it also held that the tribals, who are governed by their customs and also the custom vary from people to people and religion to religion, codified Hindu Law doesn't apply to them. 

Prakash v. Phulavati (2016)

In this case, the respondent (Phulavati) had initially filed a partition suit before the tribunal in 1992, after her father’s death. She claimed 1/7th share within the properties that her father acquired from his mother. While the suit was still pending, the Hindu Succession (Amendment) Act, 2005 was made effective. The Amendment gave coparcenary rights to the daughters still. Phulavati used the opportunity; she amended her previous claim as per the 2005 Amendment. The judicature only partly allowed her suit. 

Following the Trial Court’s order, Phulavati approached the state supreme court stating that she, being a coparcener as per the 2005 Amendment, has adequately shared her brothers within the father’s property. The appellant (Prakash, Phulavati’s brother) contended that the 2005 Amendment won't apply within the present case, because the father died before 2005. The tribunal ordered in Phulavati’s favour and allowed the retrospective effect of the 2005 Amendment.

Aggrieved by the High Court’s decision, Prakash approached the Supreme Court. Finally, the Supreme Court overruled the High Court’s decision and held that the 2005 Amendment won't apply to any partition which was effected before its enactment. 

Danamma v. Amar Singh (2018)

In this case, the appellants were the 2 daughters recently Shri Gurulingappa Savadi and his widow, Sumitra. The couple also had two sons, Arun Kumar and Vijay. Amar Singh, the son of Arun Kumar, filed the partition suit claiming a one-fifteenth share in Savadi’s property. His claim was supported the very fact that the property was within the possession of the 2 sons and also the widow. He contended that the 2 daughters weren't the coparceners, as they were born before the enactment of the Hindu Succession Act, 1956 as amended in 2005 (the Act). Following the Trial Court’s decision favouring Arun Kumar, the appellants approached the court challenging the choice. The court upheld the Trial Court’s decision, following which the appellants approached the Supreme Court. 

The Supreme Court, however, held that Section 6 of the Act contains a retrospective effect on the devolution of coparcenary property. Daughters are coparceners, no matter whether the daddy died before or after the 2005 Amendment. Ultimately, the contended was equally divided into five shares, one each for the 2 sons, two daughters, and also the widow. 

Hence, this case established the retrospective effect of the Act on the copartnership of girls with regards to the father’s date of death. 

There is a necessity to get rid of complexities and legal challenges. The planet is changing. Gone are the times when patriarchy ruled women’s rights and needs. Women are getting more independent than ever before. Due to education and technology, today women needn't depend on the age-old tradition of Stridhan to satisfy their post-marital needs. And that’s why Stridhan is slowly disappearing from the face of contemporary Indian societies. The eradication of the archaic tradition is empowering women to be entitled to property rights just like that of their male counterparts. The recent judicial developments within the recognition of property rights of Indian women that we discussed above are a positive movement towards a gender-equal India. Let’s hope we achieve it soon. Women’s empowerment and property rights remain an unfinished project. Hence, we'd like to cut back ground-level resistance to registering land for women.

10 May 2023


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